Déjà vu: From Comic Books to Video Games: Legislative Reliance on “Soft Science” to Protect against Uncertain Societal Harm Linked to Violence v. the First Amendment

Terri R. Day, Barry University School of Law
Ryan C.W. Hall Dr.

Abstract

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses on the larger concern of relying on social science research to build a record of legislative findings for restrictions on expressive rights. This analysis on “soft science” is from the perspective of both forensic psychiatry and the law. Concluding that the standard for deference to legislative findings in First Amendment cases is not sufficiently rigorous, a more rigorous standard is proposed. This paper provides a unique view and a novel solution to the use of social science evidence in support of First Amendment restrictions. Violent video games are the most recent target of politicians and advocacy groups, aided by the social science community, to restrict politically unpopular expression.